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21 January 2014

ARTICLE: Herbert J. Hovenkamp on "Interest Groups in the Teaching of Legal History"

Herbert J. Hovenkamp's "Interest Groups in the Teaching of Legal History", in Philosophy of Law e-Journal, vol.7, n. 7

Abstract

One
reason legal history is more interesting than it was several decades
ago is the increased role of interest groups in our accounts of legal
change. Diverse movements including law and society, critical legal
theory, comparative law, and public choice theory have promoted this
development, even among writers who are not predominantly historians.
Nonetheless, in my own survey course in American legal history I often
push back. Taken too far, interest group theorizing becomes an easy
shortcut for assessing legal movements and developments without fully
understanding the ideas behind them. Intellectual history in the
United States went into decline because its practitioners often wrote
as if the history of ideas drove everything else, either disregarding or
minimizing the role of interest groups. In the process it became viewed
as inherently conservative because its source materials came almost
exclusively from elite white males. On the other side, social and
economic history have been driven by impulses originating from both the
left and the right that sees policy as little more than the outcome of
conflict among interest groups. Further, these preference are generally
"naked" in the sense that they reveal little more than the desires of
each individual for wealth, stability, social status, or other
recognition. Articulated ideas are little more than rationalizations,
and the public processes that make legal rules are largely a zero sum
game.

I try to instill in my students the idea that legal
history is a much more complex process in which ideas and preferences
interact. In differing areas and at different times one may dominate
over the other, but almost never permanently. Further, ideas lead to
preferences just as much as the other way around. Teaching legal
history in this fashion is more challenging to both the instructor and
the students because it requires that ideas be taken more seriously. One
cannot simply pass a hand over an entire area such as business policy
and proclaim it to be the result of Social Darwinism, populism, labor
and the surge in immigration, or some other interest group movement. I
certainly do not expect my students to become experts in Calvinism, the
social contract, classical political economy, genetic determinism,
Freud, or the many other areas that wander into and out of my legal
history course. But I do expect them to learn enough to take them
seriously, and to understand that these intellectual ideas were as
powerful to those who encountered them as the ideas that we hold today.